Wheeler v. Construction Co.

18 Citing cases

  1. Steadman v. Pinetops

    112 S.E.2d 102 (N.C. 1960)   Cited 23 times

    There is a dedication, and if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require." Gaither v. Hospital, 235 N.C. 431, 70 S.E.2d 680; Rawe v. Durham, 235 N.C. 158, 69 S.E.2d 171; Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282. It should be kept in mind, however, that the dedication referred to in the rule above stated, insofar as the general public is concerned, without reference to any claim or equity of the purchasers of lots in a subdivision, is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed on the public use in some proper way it has consented to assume them. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18. Likewise, a town has the right to determine where its streets shall be located as well as the right to accept or reject any offer of dedication. Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695; Lee v. Walker, supra.

  2. Bryan v. Sanford

    92 S.E.2d 420 (N.C. 1956)   Cited 4 times
    Holding the city had accepted the dedication by approving the map and incorporating it into the city's zoning ordinance

    But in so far as the municipality is concerned, this constitutes only an offer of dedication, and there is no complete dedication without an acceptance of some kind by the municipality. Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104; Rowe v. Durham, 235 N.C. 158, 69 S.E.2d 171; Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898. However, evidence of acceptance would not be confined to use and maintenance of the land as such. Acceptance may be manifested by the adoption as official of a map delineating areas as public streets or places, followed by official acts and ordinances recognizing their character as such.

  3. Rowe v. Durham

    69 S.E.2d 171 (N.C. 1952)   Cited 18 times

    It is true that a purchaser of a lot which has been sold by reference to a subdivision, a plat of which has been recorded, acquires the equitable right to have the street appearing on the map opened for his benefit. Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; Green v. Miller, 161 N.C. 24, 76 S.E. 505; Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; Stephens Co. v. Homes Co., 181 N.C. 335, 107 S.E. 233; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889. However, "as between an owner of land and the public, the mere sale of lots with reference to a map or plat showing streets is not alone sufficient to constitute an irrevocable dedication to the public.

  4. Lee v. Walker

    234 N.C. 687 (N.C. 1952)   Cited 27 times
    Holding taxes collected on land to be a factor to consider in determining the public character of land

    Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13. Moreover, it is the general rule that, "where lots are sold and conveyed by reference to a map or plat which represents the division of a tract of land into subdivisions of streets and lots, such streets become dedicated to the public use, and the purchaser of a lot or lots acquires the right to have all and each of the streets kept open; and it makes no difference whether the streets be in fact opened or accepted by the governing boards of towns or cities if they lie within municipal corporations." Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; Green V. Miller, 161 N.C. 24, 76 S.E. 505; Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; Stephens Co. v. Homes Co., 181 N.C. 335, 107 S.E. 233; Insurance Co. v. Carolina Beach, supra; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Russell v. Coggin, supra. It should be kept in mind, however, that the dedication referred to in the rule above stated, in so far as the general public is concerned, without reference to any claim or equity of the purchasers of lots in a subdivision, is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed upon the public unless in some proper way it has consented to assume them. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, supra. A town has the right to determine where its streets and alleys shall be. Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695.

  5. Russell v. Coggin

    232 N.C. 674 (N.C. 1950)   Cited 13 times

    There is a dedication, and if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require." Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26; 96 S.E. 736; Stephens Co. v. Homes Co., 181 N.C. 335, 107 S.E. 233. However, it is provided in Chapter 174 of the Public Laws of 1921, as amended by Chapter 406 of the Public Laws of 1939, and now codified as G.S. 136-96, that land "dedicated to public use as a road, highway, street, avenue, or for any other purpose whatsoever, by any deed, grant, map, plat, or other means, which shall not have been actually opened and used by the public within twenty years from and after dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purposes for which the same shall have been dedicated; and no person shall have any right, or cause of action thereafter, to enforce any public or private easement therein, . . . Provided . . . the dedicator, or those claiming under him, shall file and cause to be recorded in the register's office of the county where said land lies a declaration withdrawing such strip, pi

  6. Broocks v. Muirhead

    25 S.E.2d 889 (N.C. 1943)   Cited 14 times

    Even though such condition exists, the record fails to show that plaintiffs have done anything to deprive plaintiff Elsie E. Broocks of her right to the use of the alleyway, and to the extent that the brick walls are an obstruction defendants are interfering with the use of the alleyway. And the remedy of injunction is available to her. Pertinent thereto, it is held in the case of Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221, that "platting into lots and streets and selling the lots by reference to the map, dedicates the streets thereon to the public in general and to the purchaser of lots in particular"; that "injunction is the proper remedy," and that "the obstruction and closing up the street creates a nuisance, and each purchaser can, by injunction, or other proper proceeding, have the nuisance abated." The third contention of defendants is that, there being no allegation, or proof or finding that defendants have placed any obstructions upon the strip of land which has prevented the use of it by plaintiffs, the court erred in directing defendants to remove all obstructions which they placed upon same. What is said above with regard to the second contention applies with equal force here, and, hence, we hold that the court properly ruled.

  7. Insurance Co. v. Carolina Beach

    7 S.E.2d 13 (N.C. 1940)   Cited 38 times
    Explaining that "the board of aldermen, acting under the charter and pertinent laws, has the discretionary power as to the extent to which the street as dedicated to public use will be accepted, and may thereby limit the responsibility of the town for maintenance"

    It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys the lots or any of them with reference to the plat, nothing else appearing, he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public. S. v. Fisher, 117 N.C. 733, 23 S.E. 158; Moose v. Carson, 104 N.C. 431, 10 S.E. 689; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; Collins v. Land Co., 128 N.C. 563, 39 S.E. 21; Davis v. Morris, 132 N.C. 435, 43 S.E. 950; Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Bailliere v. Shingle Co., 150 N.C. 627, 64 S.E. 754; Green v. Miller, 161 N.C. 24, 76 S.E. 505; Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; Stephens Co. v. Homes Co., 181 N.C. 335, 107 S.E. 233; Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 585; Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104; Somersette v. Stanaland, 202 N.C. 685, 163 S.E. 804. In Hughes v. Clark, supra, the Court, referring to the cases of Moose v. Carson, supra; Conrad v. Land Co., supra; Collins v. Land Co., supra; and Rives v. Dudley, 56 N.C. 126, said: "The effect of the foregoing decisions is that where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to the public use, and the purchaser of a lot or lots acquires the right to have all and each of the streets kept open; and it makes no difference whether the streets be in fact opened or accepted by the governing boards of t

  8. Somersette v. Stanaland

    163 S.E. 804 (N.C. 1932)   Cited 9 times

    It is an established principle that if the owner of land lays it off into lots with intersecting alleys, streets, or highways, and conveys the lots by reference to the plat, he thereby dedicates such alleys, streets, and highways to the use of the purchasers and of the public, unless it appears that the mention of the alleys, streets, or highway was intended only for the purpose of description. Conrad v. Land Co., 126 N.C. 776; Bailliere v. Shingle Co., 150 N.C. 627, 636; Green v. Miller, 161 N.C. 25; Wheeler v. Construction Co., 170 N.C. 427; Elizabeth City v. Commander, 176 N.C. 26. The principle may apply to a plat of ground outside, as well as to property within, a town or village; a dedication may be made of a country road or of a city street.

  9. Davis v. Alexander

    162 S.E. 372 (N.C. 1932)   Cited 13 times

    In 2 Elliott, Roads and Streets, supra, part sec. 850, p. 1107, the law is stated as follows: "In addition to the right of the public to maintain a suit in equity for an injunction, private citizens who are specially injured by an obstruction and interested in preventing its continuance may, upon a proper showing, maintain a suit in equity for an injunction." Butler v. Tob. Co., 152 N.C. 416; Crawford v. Marion, 154 N.C. 75; Wheeler v. Construction Co., 170 N.C. 427; 29 C. J., pages 552-3; 13 R. C. L. "Highways," sec. 201, pp. 40-1; 2 Lewis on "Eminent Domain" (3d ed.) p. 1596. In 1 Lewis on "Eminent Domain," pp. 368-9, the matter is stated thus: "But it would seem that both the public and those claiming the fee should be estopped from denying the existence of a private right of access and of light and air, as to those who have purchased or improved abutting property on the faith of the advantages offered by the street or highway and that this private right of access should be held to include an outlet in both directions to the general systems of streets.

  10. Gault v. Lake Waccamaw

    200 N.C. 593 (N.C. 1931)   Cited 22 times
    In Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104, this Court said: "When there its a dedication and acceptance by the municipality or other governing body of public ways or squares and commons in this jurisdiction the statute of limitations does not now run against the municipality or governing body. Public Laws 1891, ch. 224, C.S. 435 (now G.S. 1-45) * * *."

    St. Louis v. St. Louis University, 88 Mo., 155, 159. Dedication of streets outside of city may be accepted by the city on subsequent extension of city limits. Smith v. Dothan, 211 Ala. 338; Wheeler v. Construction Co., 170 N.C. 427. See Chimney Rock Co. v. Lake Lure, ante, p. 171.